United States v. Armando Orozco-Barron ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50298
Plaintiff-Appellee, D.C. No.
3:20-cr-02277-
v. LAB-1
ARMANDO OROZCO-BARRON,
AKA Armando Orozco-Baron, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 8, 2022
Pasadena, California
Filed May 22, 2023
Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan
Christen, Circuit Judges.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Christen
2 UNITED STATES V. OROZCO-BARRON
SUMMARY *
Criminal Law
Affirming Armando Orozco-Barron’s conviction for
attempted illegal reentry after deportation, the panel held
that the district court, in denying Orozco-Barron’s motion to
dismiss his information for violations of the Speedy Trial
Act, did not clearly err in excluding periods of delay
resulting from ends of justice continuances granted due to
events caused by the global COVID-19 pandemic.
The focus of the parties’ dispute was on whether the
period from August 14, 2020 (the day after the information
was filed) until December 1, 2020 (a total of 110 days) was
excluded from computing the time within which the trial had
to commence under the Speedy Trial Act.
The panel concluded that the district court complied with
the applicable statutory requirements. First, the district
court’s finding that the ends of justice were best served by
granting continuances during the period from August 14,
2020, until December 1, 2020, was timely because the
district court put this finding on the record during the July
12, 2021, hearing on the defendant’s motion to dismiss under
18 U.S.C. § 3162(a)(2). The continuances were also
specifically limited in time to successive 30-day
periods. Next, the district court made the requisite findings
under § 3161(h)(7)(A), consistent with United States v.
Olsen, 21 F.4th 1036 (9th Cir. 2022) (per curiam), by relying
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. OROZCO-BARRON 3
on the Southern District of California chief judge orders in
effect during the time period at issue. In addition to relying
on the chief judge orders, the district court made its own
findings on the record. The district court also considered the
relevant statutory and non-statutory factors when deciding to
grant a continuance. The panel wrote that the district court’s
findings—both the district court’s statements at the hearing
and the chief judge orders incorporated by reference—are
consistent with Olsen’s reasoning that a court could
appropriately base its decision to grant continuances on the
fact that “a global pandemic that has claimed more than half
a million lives in this country, and nearly 60,000 in
California alone, falls within such unique circumstances to
permit a court to temporarily suspend jury trials in the
interest of public health.” In light of this court’s ruling in
Olsen, and the continuation of the global pandemic, the
panel concluded that neither the district court’s factual
findings nor its ultimate ends of justice determination were
clearly erroneous.
Citing United States v. Carrillo-Lopez, No. 21-10233, __
F.4th __ (9th Cir. 2023), the panel rejected Orozco-Barron’s
argument that the district court erred by not dismissing his
information on the ground that 8 U.S.C. § 1326 violates the
Equal Protection Clause.
Judge Christen concurred in part and dissented in
part. She concurred in the majority’s conclusion that § 1326
does not violate the Equal Protection Clause, but wrote that
the majority errs by affirming the district court’s denial of
Orozco-Barron's motion to dismiss for violation of the
Speedy Trial Act (STA). She wrote that the majority relies
on Olsen, a case that arose when a series of orders suspended
all jury trials in the Central District of California due to the
COVID-19 pandemic, but that, by contrast, most of Orozco-
4 UNITED STATES V. OROZCO-BARRON
Barron’s pre-trial detention occurred after the Southern
District of California had resumed conducting jury trials on
a limited basis. As such, the STA and Supreme Court
precedent interpreting it required the district court to make
case-specific findings before excluding time on the STA
clock, which the district court did not do.
COUNSEL
Katherine M. Hurrelbrink (argued), Assistant Federal Public
Defender, Federal Public Defenders’ Office, San Diego,
California, for Defendant-Appellant.
Mark R. Rehe (argued), Michael A. Deshong, and Vivian
Sapthavee, Assistant United States Attorneys; Daniel E.
Zipp, Assistant United States Attorney, Appellate Section
Chief; Randy S. Grossman, United States Attorney; Office
of the United States Attorney; San Diego, California; for
Plaintiff-Appellee.
UNITED STATES V. OROZCO-BARRON 5
OPINION
IKUTA, Circuit Judge:
Armando Orozco-Barron appeals his conviction for
attempted illegal reentry after deportation in violation of 8
U.S.C. § 1326. He contends that the district court erred in
denying his motion to dismiss his information for violations
of the Speedy Trial Act. We conclude that the district court
did not clearly err in excluding periods of delay resulting
from ends of justice continuances granted due to events
caused by the global COVID-19 pandemic, and therefore we
affirm.
I
The Speedy Trial Act, 18 U.S.C. § 3161, implements the
Sixth Amendment’s guarantee of a speedy and public trial to
criminal defendants. See Furlow v. United States, 644 F.2d
764, 769 (9th Cir. 1981) (per curiam). Under the Speedy
Trial Act, “the trial of a defendant charged in an information
or indictment with the commission of an offense shall
commence within seventy days from the filing date (and
making public) of the information or indictment.” 18 U.S.C.
§ 3161(c)(1). This timeline may be extended if a court
grants a motion to exclude certain periods of delay listed in
18 U.S.C. § 3161(h). “If a defendant is not brought to trial
within the time limit required by section 3161(c) as extended
by section 3161(h), the information or indictment shall be
dismissed on motion of the defendant.” Id. § 3162(a)(2).
Among other excluded periods, § 3161(h)(7)(A)
excludes “[a]ny period of delay resulting from a continuance
granted by any judge . . . if the judge granted such
continuance on the basis of his findings that the ends of
6 UNITED STATES V. OROZCO-BARRON
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.” A
continuance granted on this basis is sometimes referred to as
an “ends-of-justice continuance.” Zedner v. United States,
547 U.S. 489, 500 (2006).
A district court must comply with certain requirements
when granting an ends of justice continuance. First, any
period of delay resulting from the continuance must be
“specifically limited in time.” United States v. Lloyd, 125
F.3d 1263, 1268 (9th Cir. 1997) (citation omitted). Second,
the court must “set[] forth, in the record of the case, either
orally or in writing, its reasons for finding that the ends of
justice” outweigh the public’s and defendant’s interest in a
speedy trial. 18 U.S.C. § 3161(h)(7)(A). Although “the Act
is ambiguous on precisely when those findings must be se[t]
forth, in the record of the case,” the Supreme Court has ruled
that the district court must put its ends of justice findings on
the record “by the time a district court rules on a defendant’s
motion to dismiss under § 3162(a)(2).” Zedner, 547 U.S. at506–07 (alteration in original). Third, the court “must
evaluate, ‘among others,’ several enumerated factors” in
deciding whether to grant an ends of justice continuance.
United States v. Olsen, 21 F.4th 1036, 1041 (9th Cir.) (per
curiam) (citing 18 U.S.C. § 3161(h)(7)(B)(i)–(iv)), cert.
denied, 142 S. Ct. 2716 (2022). 1 “[D]istrict courts have
1
18 U.S.C. § 3161(h)(7)(B) provides:
(B) The factors, among others, which a judge shall
consider in determining whether to grant a
continuance under subparagraph (A) of this paragraph
in any case are as follows:
(i) Whether the failure to grant such a continuance in
the proceeding would be likely to make a continuation
UNITED STATES V. OROZCO-BARRON 7
broad discretion to consider any factors based upon the
specific facts of each case,” id. at 1046, and a court is not
required to address every factor listed in the statute “as long
as its reasoning is sufficient to justify excluding the
continuance from the Act’s seventy-day limit.” United
States v. McCarns, 900 F.3d 1141, 1144–45 (9th Cir. 2018)
(citations omitted). District courts may also need “to address
relevant non-statutory considerations.” Olsen, 21 F.4th at
1046.
of such proceeding impossible, or result in a
miscarriage of justice.
(ii) Whether the case is so unusual or so complex, due
to the number of defendants, the nature of the
prosecution, or the existence of novel questions of fact
or law, that it is unreasonable to expect adequate
preparation for pretrial proceedings or for the trial
itself within the time limits established by this section.
(iii) Whether, in a case in which arrest precedes
indictment, delay in the filing of the indictment is
caused because the arrest occurs at a time such that it
is unreasonable to expect return and filing of the
indictment within the period specified in section
3161(b), or because the facts upon which the grand
jury must base its determination are unusual or
complex.
(iv) Whether the failure to grant such a continuance in
a case which, taken as a whole, is not so unusual or so
complex as to fall within clause (ii), would deny the
defendant reasonable time to obtain counsel, would
unreasonably deny the defendant or the Government
continuity of counsel, or would deny counsel for the
defendant or the attorney for the Government the
reasonable time necessary for effective preparation,
taking into account the exercise of due diligence.
8 UNITED STATES V. OROZCO-BARRON
“[I]f a judge fails to make the requisite findings
regarding the need for an ends-of-justice continuance, the
delay resulting from the continuance must be counted, and if
as a result the trial does not begin on time, the indictment or
information must be dismissed.” Zedner, 547 U.S. at 508.
Therefore, the “failure to make the prescribed findings” to
justify a continuance cannot “be excused as harmless error”
under “the Act’s categorical terms.” Id.We have recently “provide[d] guidance on the
application of the Speedy Trial Act’s ends of justice
provision, 18 U.S.C. § 3161(h)(7)(A), in the context of the
challenges presented by the COVID-19 pandemic.” Olsen,
21 F.4th at 1044. In Olsen, we considered delays caused by
the Central District of California’s suspension of jury trials
due to the COVID-19 pandemic. Id. at 1041. On March 13,
2020, the Central District declared a judicial emergency
under 18 U.S.C. § 3174, 2 which was subsequently approved
by the Ninth Circuit’s Judicial Council. In re Approval of
Jud. Emergency Declared in C.D. Cal., 955 F.3d 1140, 1141
(9th Cir. 2020) (order). The Central District then issued a
series of emergency orders suspending criminal jury trials
“with the stated purpose ‘to protect public health’ and ‘to
reduce the size of public gatherings and reduce unnecessary
travel,’ consistent with the recommendations of public
health authorities.” Olsen, 21 F.4th at 1041. After eight
continuances of the defendant’s trial date, the defendant
asked to proceed with a jury trial. Id. at 1042. “The
government argued that an ends of justice continuance was
appropriate due to the COVID-19 pandemic, the Central
2
18 U.S.C. § 3174 provides procedures for a district court to apply to the
judicial council of the circuit to suspend the time limits required for
compliance with the Speedy Trial Act.
UNITED STATES V. OROZCO-BARRON 9
District’s order suspending jury trials, and the absence of
protocols to ensure the safety of jurors, witnesses, court staff,
litigants, attorneys, defendants, and the public.” Id.The district court denied the government’s motion. Id.The court focused on one factor set out in § 3161(h)(7)(B)(i),
“[w]hether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible.” Id. at 1042–43. Interpreting this
language narrowly, the court held that an ends of justice
continuance could not be granted unless holding a trial
would be literally impossible. Id. at 1043. Observing that
“grand juries had convened in the federal courthouse” and
that a state court across the street “had resumed jury trials
with precautionary measures,” the district court determined
that it was “not a physical or logistical impossibility to
conduct a jury trial.” Id. Therefore, it denied the motion for
a continuance. Id. at 1042. The court subsequently granted
the defendant’s motion to dismiss the indictment with
prejudice for violations of the Speedy Trial Act. Id. at 1043–
44.
Olsen reversed in an opinion setting forth important
direction for reviewing an ends of justice continuance in an
emergency situation such as the one before the district court.
First, Olsen rejected the district court’s narrow reading
of § 3161(h)(7)(b)(i) as precluding a court from granting
ends of justice continuances if holding a trial is not literally
impossible. Id. at 1044–45. Olsen held there was no such
per se rule, and a court could grant such an ends of justice
continuance even if a trial were physically or logistically
possible in some manner. Id. In the same vein, Olsen
rejected the argument that a court could not grant an ends of
justice continuance merely because other courts were able to
10 UNITED STATES V. OROZCO-BARRON
conduct jury trials. See id at 1046–47 nn.9–10. Olsen noted
that different courthouses may raise different risk factors,
and that courts holding jury trials were not necessarily
conducting such trials safely. Id.
Second, Olsen indicated that in evaluating a motion for
an ends of justice continuance, a district court cannot limit
itself to focusing only on the statutory impossibility factor in
§ 3161(h)(7)(B)(i), but must consider other relevant
statutory and non-statutory factors. Id. at 1046–47.
Specifically, Olsen held that the district court should have
evaluated whether the failure to grant a continuance would
be likely to “result in a miscarriage of justice.” Id. at 1046
(citing § 3161(h)(7)(B)(i)). The court should also have
considered other non-statutory factors relevant to the
COVID-19 pandemic. 3 Id.
Next, Olsen held that “a global pandemic that has
claimed more than half a million lives in this country, and
3
In the context of the COVID-19 pandemic, Olsen found the following
“non-exhaustive,” non-statutory factors relevant:
(1) whether a defendant is detained pending trial; (2)
how long a defendant has been detained; (3) whether
a defendant has invoked speedy trial rights since the
case’s inception; (4) whether a defendant, if detained,
belongs to a population that is particularly susceptible
to complications if infected with the virus; (5) the
seriousness of the charges a defendant faces, and in
particular whether the defendant is accused of violent
crimes; (6) whether there is a reason to suspect
recidivism if the charges against the defendant are
dismissed; and (7) whether the district court has the
ability to safely conduct a trial.
21 F.4th at 1046.
UNITED STATES V. OROZCO-BARRON 11
nearly 60,000 in California alone, falls within such unique
circumstances to permit a court to temporarily suspend jury
trials in the interest of public health.” Id. at 1047. Olsen
noted our Judicial Council’s explanation that “Congress did
not intend that a district court demonstrate its inability to
comply with the [Speedy Trial Act] by dismissing criminal
cases and releasing would-be convicted criminals into
society.” Id. (alteration in original) (citing Judicial
Emergency, 955 F.3d at 1142–43).
Olsen also indicated that the Central District’s
emergency general orders were a sufficient basis “to pause
jury trials and exclude time under the Speedy Trial Act.” Id.
at 1049. Olsen observed that “[t]he orders acknowledge the
importance of the right to a speedy and public trial both to
criminal defendants and the broader public, and conclude
that, considering the continued public health and safety
issues posed by COVID-19, proceeding with such trials
would risk the health and safety of those involved, including
prospective jurors, defendants, attorneys, and court
personnel.” Id.; see also id. at 1052 (Murguia, C.J., and
Christen, J., concurring in denial of rehearing en banc)
(describing Olsen as noting “that the Central District of
California’s emergency general orders clearly applied the
Speedy Trial Act standard”).
Given the national emergency caused by the COVID-19
pandemic, and the Central District’s suspension of jury
trials, Olsen had “no difficulty in concluding that the district
court’s failure to grant the government’s motion and
subsequent dismissal of [the defendant]’s
indictment . . . resulted in a miscarriage of justice.” Id. at
1046. Therefore, Olsen concluded that the government was
entitled to an ends of justice continuance, and ordered the
district court to grant one and set the case for a trial. Id. at
12 UNITED STATES V. OROZCO-BARRON
1049. Olsen also reversed the district court’s dismissal of
the defendant’s indictment. Id.
Our conclusion in Olsen is consistent with the
conclusions of two of our sister circuits. See United States
v. Leveke, 38 F.4th 662, 670 (8th Cir.), cert. denied, 143 S.
Ct. 386 (2022) (holding that a district court may properly
grant an ends of justice continuance to postpone all jury trials
due to the COVID-19 pandemic, and may rely on
administrative orders issued by the district); United States v.
Roush, No. 21-3820, 2021 WL 6689969, at *1–2 (6th Cir.
Dec. 7, 2021), cert. denied, 142 S. Ct. 1187 (2022) (holding
that the district court did not abuse its discretion in granting
an ends of justice continuance based on the district court’s
General Orders pertaining to the management of cases
during the COVID-19 pandemic); cf. United States v. Keith,
61 F.4th 839, 851 (10th Cir. 2023) (holding that “[t]he
district court acted within its discretion by excluding . . . 85
days from the [Speedy Trial Act] clock” and “support[ing]
its ends-of-justice findings by identifying ‘the current state
of the COVID-19 pandemic in Oklahoma,’” citing the
Western District of Oklahoma’s court-wide General Orders).
II
A
We now turn to the facts of this case. Armando Orozco-
Barron is a citizen of Mexico who has repeatedly entered the
United States illegally, and has been deported eight times.
During the periods he was in the United States, he was
convicted of multiple offenses, including four convictions
for driving while intoxicated, three for assault or battery,
including a domestic violence conviction, two for improper
entry in violation of 8 U.S.C. § 1325, and one for illegal
reentry in violation of 8 U.S.C. § 1326.
UNITED STATES V. OROZCO-BARRON 13
On July 17, 2020 (three months after his most recent
deportation to Mexico), he was once again arrested for
illegal reentry. When arrested, Orozco-Barron admitted he
had no right to enter the United States, and was ordered
detained. Orozco-Barron waived indictment. The
government filed an information, charging Orozco-Barron
with attempted reentry by a deported alien in violation of 8
U.S.C. § 1326, on August 13, 2020. 4
As in Olsen, Orozco-Barron’s trial took place against a
backdrop of the global COVID-19 pandemic. Beginning on
March 17, 2020, Chief Judge Burns of the Southern District
of California (who also was the presiding judge of Orozco-
Barron’s district court case) declared a judicial emergency,
see 28 U.S.C. § 3174(e), and issued an emergency order
suspending Speedy Trial Act time limits in his district (Chief
Judge Order 18). 5 In addition to declaring a judicial
emergency, the Chief Judge ordered all jury trials in criminal
cases to be continued until April 16, 2020. The Chief Judge
based his order on the need “to protect public safety and
4
On appeal, Orozco-Barron argues that the district court erred by not
dismissing his information on the ground that § 1326 violates the Equal
Protection Clause. After the appeal in this case, we held that Section
1326 does not violate the Equal Protection Clause. See United States v.
Carrillo-Lopez, No. 21-10233, __ F.4th __ (9th Cir. 2023). Therefore,
we reject this argument.
5
Other district courts in California took the same approach. The Central
District had filed a similar declaration of emergency a few days earlier,
see Olsen, 21 F.4th at 1041 n.2. The Chief Judge of the Northern District
issued an emergency order on March 16, 2020, see United States v. Allen,
34 F.4th 789, 793 (9th Cir. 2022). The Chief Judge of the Eastern
District also issued an emergency order on March 17, 2020. In re
Approval of Jud. Emergency Declared in E.D. Cal., 956 F.3d 1175, 1177
(9th Cir. 2020) (order).
14 UNITED STATES V. OROZCO-BARRON
prevent the spread of COVID-19,” as well as a range of
additional factors, including that the “President of the United
States of America, the Governor of the State of California,
and the Mayor of the City of San Diego ha[d] declared states
of emergency in response to” COVID-19, that the “Centers
for Disease Control and Prevention and other public health
authorities ha[d] advised that public gatherings be limited to
no more than ten people,” that the “United States Attorney
for the Southern District” advised “that a quorum of grand
jurors [would] not be available,” and that the San Diego
federal jail had “restricted access by defense counsel to their
incarcerated clients.” Further, the Chief Judge found that the
“effect of these public health recommendations and the
concerns and restrictions that they have generated ha[d]
greatly jeopardized the Court’s ability to obtain an adequate
spectrum of trial and grand jurors, and impair[ed] the
availability of counsel, witnesses, parties, the public, . . . and
Court staff to be present in the courtroom.” Based on these
factors, the Chief Judge found that “the period of suspension
of criminal trials and other criminal proceedings
implemented by this Order” was to be “excluded under the
Speedy Trial Act” per 18 U.S.C. § 3161(h)(7)(A), because
“these continuances serve the ends of justice and outweigh
the interests of the public, of the government, and of criminal
defendants in a speedier trial.” 6
6
As in Olsen, the Ninth Circuit’s Judicial Council subsequently
approved the Chief Judge’s request and extended the judicial emergency
for an additional period of up to one year. See In re Approval of Jud.
Emergency Declared in S.D. Cal., 955 F.3d 1135, 1136 (9th Cir. 2020)
(order). Although a declaration under § 3174 extends the time limits
from indictment to trial under the Speedy Trial Act, “[t]he time limits for
the trial of cases of detained persons who are being detained solely
because they are awaiting trial” are not affected by that section. 18
UNITED STATES V. OROZCO-BARRON 15
A month later, on April 15, 2020, the Chief Judge issued
a second order extending the continuance for an additional
period of 30 days. The order stated that the “circumstances
giving rise to the judicial emergency ha[d] not materially
changed or abated” in the last thirty days, and the “public
health emergency continue[d] in the nation, the State of
California, and the City of San Diego” due to COVID-19.
Therefore, based on the same “factors outlined in [Chief
Judge Order] 18” regarding the need “to protect the public
safety and prevent the spread” of COVID-19, the Chief
Judge extended the emergency orders set forth in Chief
Judge Order 18 and found that “this extension serve[d] the
ends of justice under 18 U.S.C. § 3161(h)(7)(A).”
As the COVID-19 pandemic worsened over the
following months, the Chief Judge continued to issue
substantially similar orders on a monthly basis through the
end of the year. 7 Each order renewed the suspension of
criminal jury trials and trial-specific deadlines in the
Southern District for only 30 days, and made the same
findings. Four such chief judge orders were issued during
U.S.C. § 3174(b). Therefore, the emergency extension of Speedy Trial
Act time limits under § 3174 does not affect Orozco-Barron; rather, the
ordinary Speedy Trial Act time limits apply, as the government conceded
in its response to Orozco-Barron’s motion to dismiss the information
under the Speedy Trial Act. On appeal, the government does not argue
otherwise.
7
See Chief Judge Order 27 (filed May 15, 2020); Chief Judge Order 30
(filed June 11, 2020); Chief Judge Order 33 (filed July 13, 2020); Chief
Judge Order 34 (filed August 14, 2020); Chief Judge Order 40 (filed
September 14, 2020); Chief Judge Order 47 (filed October 14, 2020);
Chief Judge Order 50 (filed November 16, 2020). The chief judge orders
are accessible at https://www.casd.uscourts.gov/rules/general-
orders.aspx.
16 UNITED STATES V. OROZCO-BARRON
the period from August 14, 2020 to December 1, 2020, and
each found that a 30-day continuance of criminal jury trials
and trial-specific deadlines “serves the ends of justice under
18 U.S.C. § 3161(h)(7)(A).” 8
On August 24, 2020, the Chief Judge issued a “District
Trial Reopening Plan” (Chief Judge Order 36). This order
provided a protocol for resuming civil and criminal jury
trials to the extent possible, starting on August 31, 2020. The
protocol noted the severe logistical difficulties in conducting
trials “while maintaining the integrity of our health and
safety protocol.” In order to conduct trials safely, “[o]nly
one trial [would] be set to start per floor per week” because
there was “only one large enough room to assemble” jurors,
there were “limits on the elevator capacity,” and people
needed to “maintain appropriate social distancing.” Since
availability and resources had to be divided among the
judges in the district, a “rotation plan” was established. The
Southern District successfully conducted a total of 14 trials
(civil and criminal) under this protocol until December 2,
2020.
On December 2, 2020, the district court convened a
status hearing in Orozco-Barron’s case. Recognizing that “it
[has] been tough on [Orozco-Barron] in custody,” the court
explained that due to the pandemic-related restrictions in the
Southern District, such as the inability to summon potential
jurors and the limited trial space, the court was still unable
to set a trial date.
8
The orders applicable during the 110 day period at issue in this case
were Chief Judge Order 34 (filed August 14, 2020); Chief Judge Order
40 (filed September 14, 2020); Chief Judge Order 47 (filed October 14,
2020); Chief Judge Order 50 (filed November 16, 2020).
UNITED STATES V. OROZCO-BARRON 17
On December 3, 2020, California experienced “an
unprecedented surge in the level of community spread of
COVID-19.” Based on state and local orders in response to
this surge, the Chief Judge reinstated a moratorium on
conducting in-person court proceedings.
While his case was pending, Orozco-Barron made
several filings in district court. He filed a motion to suppress
post-arrest statements, which was denied in a hearing on
May 19, 2021. He also filed an appeal from the detention
order issued by the magistrate judge, which was denied in a
hearing on February 3, 2021. Finally, he filed a motion to
dismiss the information on the ground that § 1326 violated
the Equal Protection Clause and that the information violated
the Fifth and Sixth Amendments. On April 7, 2021, the court
denied his motion to dismiss. At that hearing, the court set
a trial date for July 13, 2021, having found an available slot
in the Southern District’s rotation plan.
On June 23, 2021, Orozco-Barron protested the delay in
setting a trial date for the first time, by filing a motion to
dismiss for violation of the Speedy Trial Act. He claimed
that the seventy-day time frame for trial had expired on
October 23, 2020. On July 12, 2021, the district court denied
the motion. The court stated it was relying “on the pendency
of chief judge orders,” which suspended jury trial
proceedings for 30-day periods in light of the pandemic
emergency. 9 The court explained that in June 2021, when
Orozco-Barron filed his motion, the Southern District was
“still under a chief judge order that limited the number of
9
The district judge noted he was “fully aware of what the chief judge
orders were” because he “issued some of them as chief.” Among other
orders, the district judge had issued chief judge orders 34, 40, 47, and 50,
which were in effect during the disputed time period here.
18 UNITED STATES V. OROZCO-BARRON
jury trials to three per week, only one of which would be in
a custody case.” Because “[j]udges had to compete for
slots,” the court was unable to schedule Orozco-Barron’s
trial any time before July 13, 2021. The court explained that
“the pandemic concerns were still in effect all the way
through the expiration of that chief judge order,” so “[a]ll of
that time was excluded under the order.”
Orozco-Barron’s trial was held on July 13, 2021, and he
was convicted by a jury of attempted illegal reentry.
B
On appeal, Orozco-Barron argues that the district court
erred in denying his motion to dismiss for violation of the
Speedy Trial Act. The focus of the parties’ dispute is on
whether the period from August 14, 2020 (the day after the
information was filed) until December 1, 2020 (a total of 110
days) is excluded from computing the time within which the
trial had to commence under the Speedy Trial Act.10
10
The time from the filing of Orozco-Barron’s information, August 13,
2020, to the date of trial, July 13, 2021, spanned 334 days. Orozco-
Barron agrees that the period from December 2, 2020 to May 19, 2021
(a total of 168 days) and the period from June 21, 2021 until trial on July
13, 2021 (a total of 22 days) were validly excluded from the Speedy Trial
Act clock. See 18 U.S.C. § 3161(h)(1)(D). Although the government
initially argued that the time period between May 20, 2021 to June 21,
2021 (a total of 32 days) was excludable from the Speedy Trial Act clock,
it now concedes that the time was not excludable. Therefore, we do not
address Orozco-Barron’s arguments that this period of delay is not
excludable. If the period from August 14, 2020 to December 1, 2020
(the period which the parties dispute on appeal) is excludable, then only
32 days of the 70-day Speedy Trial Act time clock elapsed, and the
district court did not err because there was no Speedy Trial Act violation.
See 18 U.S.C. § 3161(c)(1). If that time period is not excludable, then
142 days elapsed, and Orozco-Barron’s “information must be dismissed”
UNITED STATES V. OROZCO-BARRON 19
We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s interpretation of the Speedy Trial
Act de novo, while we review its evaluation of the statutory
and non-statutory factors as well as its ultimate ends of
justice determination for clear error. Olsen, 21 F.4th at 1040.
III
We now turn to the question whether the district court
here improperly granted a continuance based on the ends of
justice exception.
A
We conclude that the district court complied with the
applicable statutory requirements. First, the district court’s
finding that the ends of justice were best served by granting
continuances during the period from August 14, 2020 until
December 1, 2020 was timely because the district court put
this finding on the record during the July 12, 2021 hearing
on the defendant’s motion to dismiss under § 3162(a)(2).11
See Zedner, 547 U.S. at 506–07 & n.7.
The continuances were also specifically limited in time.
See Lloyd, 125 F.3d at 1268. In granting the continuances,
the district court “relie[d] on the pendency of [the] chief
judge orders.” Each of the orders applicable during this 110-
because his trial did not commence within 70 days. Zedner, 547 U.S. at
508.
11
We reject Orozco-Barron’s assertion that the district court erred by not
explaining its reasons for a continuance at the time the court granted the
continuance during the period from August 14, 2020 to December 1,
2020. The court need not put its reasons on the record until the
“defendant moves to dismiss the indictment for failure to comply with
the Speedy Trial Act.” McCarns, 900 F.3d at 1145 n.6; see also Zedner,
547 U.S. at 506–07.
20 UNITED STATES V. OROZCO-BARRON
day period (chief judge orders 34, 40, 47, and 50)
incorporated Chief Judge Order 18, which granted only a 30-
day continuance. Each of the subsequent monthly orders
included the finding that “[m]any of the circumstances
giving rise to the judicial emergency” in the district due to
COVID-19 had “not materially changed” or “abated” in the
preceding 30 days, so they granted an additional 30-day
continuance. Accordingly, the district court’s continuances,
based on the chief judge orders, were limited in time to
successive 30-day periods.12 See Lloyd, 125 F.3d at 1268.
Next, the district court made the requisite findings under
§ 3161(h)(7)(A), consistent with Olsen, by relying on the
chief judge orders in effect during the time period at issue.
Like the general orders in Olsen, the chief judge orders
explained why it was necessary, in light of the global
COVID-19 pandemic, to suspend jury trials for 30 days “to
protect the public safety and prevent the spread” of COVID-
19. Each order expressly found that “this extension serve[d]
the ends of justice under 18 U.S.C. § 3161(h)(7)(A).”
In addition to relying on the chief judge orders, the
district court also made its own findings on the record. The
court explained that even with mitigating measures, such as
“people . . . stay[ing] six feet away from each other” and
“wear[ing] masks,” because of the emergency situation due
to COVID-19, the operations of the court were severely
limited because it was “impossible to select a jury in the
12
The dissent errs in stating that our “reasoning would allow indefinite
suspensions of criminal jury trials based solely on blanket general
orders.” Dissent at 41. Rather, each of the orders was limited in time to
a 30-day continuance, based on the finding that “[m]any of the
circumstances” due to COVID-19 had “not materially changed” or
“abated” in the preceding 30 days.
UNITED STATES V. OROZCO-BARRON 21
courtrooms,” and the need to protect public health and safety
limited each judge’s ability to conduct a trial. During the
period of delay at issue, the court found that the Southern
District was “under a chief judge order that limited the
number of jury trials,” and judges “had to take turns” to use
the available courtrooms, and “had to compete for slots,”
using “a lottery form for the” 15 to 17 judges “who [were]
trying cases,” so the court could not schedule a case “with
any degree of predictability.” The Southern District
succeeded in holding only 14 trials during the period from
August 14, 2020 until December 1, 2020. Given the chief
judge orders and the limitations on scheduling trial, the court
concluded “it was impossible, a fact that the Ninth Circuit
recognized in [Olsen], for the Court to convene [Orozco-
Barron’s] jury trial any time before” July 13, 2021 due to the
COVID-19 pandemic. Based on these pandemic-based
restrictions, the district court held that it could not convene
Orozco-Barron’s jury trial before July 13, 2021.
The district court also considered the relevant statutory
and non-statutory factors when deciding to grant a
continuance. In his statements at the hearing, the district
court focused on the factor set forth in § 3161(h)(7)(B)(i),
whether the failure to grant a continuance “would be likely
to make continuation of such proceeding impossible, or
result in a miscarriage of justice.” In stating that Olsen
recognized the impossibility of scheduling a trial during the
pandemic, the court showed its understanding that
“impossible” does not mean “literal impossibility,” 21 F.4th
at 1044–45, but rather that it faced the same barriers as were
present in Olsen. The court also considered the most
germane of the non-statutory factors relevant in a pandemic
emergency, “whether the district court has the ability to
safely conduct a trial.” Id. at 1046.
22 UNITED STATES V. OROZCO-BARRON
The court’s findings—both the district court’s
statements at the hearing and the chief judge orders
incorporated by reference—are consistent with Olsen’s
reasoning that a court could appropriately base its decision
to grant continuances on the fact that “a global pandemic that
has claimed more than half a million lives in this country,
and nearly 60,000 in California alone, falls within such
unique circumstances to permit a court to temporarily
suspend jury trials in the interest of public health.” Id. at
1047.
In light of our ruling in Olsen, and the continuation of
the global pandemic, we conclude that neither the district
court’s factual findings nor its ultimate ends of justice
determination were clearly erroneous. See United States v.
Christie, 825 F.3d 1048, 1058 (9th Cir. 2016) (“To be clearly
erroneous, a finding must be more than possibly or even
probably wrong; the error must be pellucid to any objective
observer.” (citation and quotation marks omitted)). The
district court based its findings on specific and well-
recognized emergency limitations imposed due to health
concerns that we recognized in Olsen, and that were present
at the time it ordered the delays. Failing to grant a
continuance would result in dismissing a criminal case and
releasing a defendant charged with a recidivist offense,
which is a miscarriage of justice recognized in Olsen. See
21 F.4th at 1046. Nor does the ability of the Southern
District to conduct a minimal number of trials make the
district court’s finding that it could not schedule a trial in
Orozco-Barron’s case, due to the effects of the pandemic,
clearly erroneous. Christie, 825 F.3d at 1058. In Olsen,
“grand juries had convened in the federal courthouse” and
the state court across the street was holding jury trials, and
UNITED STATES V. OROZCO-BARRON 23
yet we held that the district court erred in not granting a
continuance. 21 F.4th at 1043.13
The dissent argues that the district court failed to
consider the relevant factors because its ruling relied on the
chief judge orders and did “not reflect consideration of
Orozco-Barron’s detained status during the pre-trial period,”
Dissent at 41–42 (citing United States v. Torres, 995 F.3d
695, 704 (9th Cir. 2021)). We disagree. A district court may
incorporate the reasoning in general orders when an
emergency or disaster has effects that are generally
applicable, see infra at 27–28. Nor does Torres require the
district court to make a finding on the record regarding the
defendant’s detained status. Rather, in Torres, we deemed
that the district court had adequately considered the
defendant’s pretrial detention status because it “was well
aware of Torres’[s] detention status, having previously
denied Torres’s request for release,” and because there was
“no indication that the district court failed to consider
Torres’s interest in being free from prolonged pretrial
detention when it considered whether the ends of justice
justified a continuance.” See 995 F.3d at 707 n.10. Here,
the district court likewise was well aware of Orozco-
Barron’s detention status, because it had previously denied
Orozco-Barron’s request for release after holding a hearing,
13
The dissent therefore errs in faulting the district court’s decision on the
ground that “the Southern District of California had resumed conducting
jury trials on a limited basis.” Dissent at 30, 33, 41, 44. The district
court explained why the resumption of jury trials did not change its
conclusion that it remained impossible to convene a jury trial in Orozco-
Barron’s case before July 13, 2021, and Olsen itself recognized that the
mere fact that a district court could physically hold a trial (and that other
courts were doing so) would not prevent a court from granting an ends
of justice continuance. 21 F.4th at 1045.
24 UNITED STATES V. OROZCO-BARRON
and subsequently recognized that it had been “tough on
[Orozco-Barron] in custody.” Thus, there is no indication
that the district court failed to consider Orozco-Barron’s
interest in being free from prolonged detention.
B
Orozco-Barron raises several arguments against this
conclusion. First, he argues that the district court could not
properly rely on the “pendency of chief judge orders”
because the orders failed to address all the relevant, non-
statutory factors set forth in Olsen. At most, Orozco-Barron
argues, the orders relied on Olsen’s seventh factor (whether
the court had the ability to safely conduct trial).
We disagree. It is not necessary for a court to address
each of the statutory or non-statutory factors on the record
before granting a continuance. The “Speedy Trial Act only
requires a district court to state ‘its reasons for finding that
the ends of justice served by granting of such continuance
outweigh the best interests of the public and the defendant in
a speedy trial.’” McCarns, 900 F.3d at 1144 (alteration in
original) (citing 18 U.S.C. § 3161(h)(7)(A)). But “[a]
district court does not need to recite specific statutory
language to satisfy § 3161(h)(7)(A) as long as its reasoning
is sufficient to justify excluding the continuance from the
Act’s seventy-day limit.” Id. at 1144–45 (emphasis added).
For the same reason, it is not necessary for the district court
to address each of the non-statutory factors identified in
Olsen on the record so long as the district court provides
adequate reasoning for granting the continuance.
Olsen confirms this conclusion. In Olsen, we held that
the district court erred by failing to consider the “miscarriage
of justice” factor. 21 F.4th at 1046. We did not suggest it
erred by failing to mention each of the other statutory
UNITED STATES V. OROZCO-BARRON 25
factors. Although we listed seven additional “non-
exhaustive” factors that we found relevant in the context of
the COVID-19 pandemic, we did not hold that the district
court erred by failing to address each non-statutory factor on
the record. Id. Rather, we held that the district court has
“broad discretion to consider any factors” bearing on the
ends of justice determination, and we faulted the district
court for failing to consider any relevant non-statutory
considerations. Id. (emphasis added). Moreover, Olsen
indicated that the findings in the chief judge orders (which
are substantially similar to the orders in this case) were
adequate “to pause jury trials and exclude time under the
Speedy Trial Act,” id. at 1049, even though they did not
address the non-statutory factors listed in that opinion.14
Orozco-Barron argues that Olsen did consider all of the
non-statutory factors before ordering the district court to
issue an ends of justice continuance. See id. at 1056–57
(Murguia, C.J., and Christen, J., concurring in denial of
14
The dissent argues that our reliance on Olsen for the conclusion that a
district court may properly rely on a generally applicable circumstance
to grant an ends of justice continuance is erroneous, because Olsen is
distinguishable from our case. According to the dissent, “the question
presented in Olsen” was whether the district court erred in its statutory
interpretation of the Speedy Trial Act, and Olsen did not address “the
general orders that suspended jury trials after the pandemic broke out.”
Dissent at 33. This is incorrect. If the only question in Olsen was one
of statutory interpretation, then—after correcting the district court’s
misinterpretation of the word “impossible”—Olsen would have
remanded the case to the district court to make an ends of justice
determination under the correct reading of the statute. 21 F.4th at 1045.
But instead, Olsen recounted the reasoning of the Central District’s
emergency orders, and then ordered the district court to grant “an
appropriate ends of justice continuance, and set [the] case for trial.” 21
F.4th at 1049.
26 UNITED STATES V. OROZCO-BARRON
rehearing en banc). Therefore, Orozco-Barron reasons, the
district court here should have done the same. But Olsen
neither expressly analyzed each factor nor stated that the
district court was required to do so. To the contrary, the non-
precedential concurrence in Olsen, on which Orozco-Barron
relies, indicated that Olsen had implicitly addressed the non-
statutory factors on appeal in the first instance. Id. And
despite the lack of any express analysis of the non-statutory
factors, Olsen “reinstate[d] [the defendant’s] indictment”
and “grant[ed] an appropriate ends of justice continuance.”
Id. at 1049 (majority opinion). Therefore, the failure of the
district court to expressly address the “suggested” factors
Olsen found “relevant” was not an error that violated the
Speedy Trial Act.
Second, Orozco-Barron and the dissent contend that the
district court erred by failing to make any individualized,
case-specific findings. In making this argument, Orozco-
Barron and the dissent rely on United States v. Ramirez-
Cortez, Dissent at 31–32, 39–40, 44, where a defendant
participating in the Southern District’s fast-track program
(which “was instituted to expedite resolution of the large
number of illegal re-entry cases” in that district) had
requested several continuances of the 30-day pre-indictment
time period in order to consider a plea agreement offered by
the government. 213 F.3d 1149, 1151 (9th Cir. 2000). The
fast-track program’s expedited schedule frequently
“necessitate[d] continuances beyond the thirty-day pre-
indictment period required by the Speedy Trial Act,” and so
a magistrate judge might grant continuances for multiple
defendants simultaneously. Id. at 1152, 1154 & n.5. The
magistrate judge granted two such continuances for the
defendant by checking a box on a pre-printed form, which
indicated that the time would be excluded pursuant to an
UNITED STATES V. OROZCO-BARRON 27
ends of justice exception. Id. at 1154. We held that the
continuances violated the Speedy Trial Act because the
magistrate judge granted blanket continuances to multiple
defendants, and did not make any inquiry into the need for a
continuance nor consider any of the ends of justice factors in
the defendant’s case. Id. at 1154–57. Orozco-Barron and
the dissent argue that the chief judge orders here likewise
grant “blanket continuances” and “displace the proper
‘particularized inquiry as to the actual need and reasons for
a continuance.’”
This argument fails. In Ramirez-Cortez, the defendant’s
need for a continuance was based on a reason specific to his
particular situation, that he needed more time to respond to
the government’s proposed plea agreement. Id. at 1149. But
that is not the situation here, where the period of delay was
caused by an emergency or disaster that has the same
widespread effects on courts and parties alike. In such
unusual cases, a district court may properly rely on a
generally applicable circumstance to grant an ends of justice
continuance, and need not make individualized
determinations. See Olsen, 21 F.4th at 1049; see also United
States v. Paschall, 988 F.2d 972 (9th Cir. 1993). In
Paschall, for instance, a major snowstorm in Portland
prevented the grand jury from forming a quorum for eight
days. 988 F.2d at 973–74. In light of this event, the Chief
Judge issued an order granting an ends of justice continuance
for eight days of the 30-day pre-indictment period due to the
“extreme adverse weather conditions” and their effect on
forming a grand jury. Id. at 974. A district court later relied
on the Chief Judge’s order to deny a defendant’s motion to
dismiss because his indictment was not issued within the 30
days. Id. We rejected the defendant’s argument that the
chief judge and district court failed to make sufficiently
28 UNITED STATES V. OROZCO-BARRON
“specific findings,” and held that the district court complied
with the requirements for granting a continuance under the
ends of justice exception by adopting the chief judge’s order.
Id. at 975.15 As in Paschall, the need for a continuance here
was not based on any reason specific to Orozco-Barron, but
rather due to a global pandemic that required suspending or
sharply limiting trials in the Southern District generally. In
such circumstances, the reasons for granting the ends of
justice continuance need not be particularized to an
individual defendant, they need only be appropriate for the
situation. See McCarns, 900 F.3d at 1144–45.
Last, Orozco-Barron argues that the chief judge orders
could not have supplied the necessary weighing of the ends
of justice factors because the chief judge orders during the
disputed period (chief judge orders 34, 40, 47, and 50) each
stated that “the ends of justice under 8 U.S.C.
§ 3161(h)(7)(A)” supported an extension of the previous
chief judge order, instead of stating that “the ends of justice
under 8 U.S.C. § 3161(h)(7)(A)” supported a continuance of
pending trials dates. This argument is meritless. The
Speedy Trial Act “does not require such ‘magic words.’”
United States v. White, 920 F.3d 1109, 1117 (6th Cir. 2019)
(citing United States v. Breen, 243 F.3d 591, 597 (2d Cir.
2001)); see also McCarns, 900 F.3d at 1144–45 (holding that
ends of justice rulings need not “recite specific statutory
language to satisfy § 3161(h)(7)(A)”). Rather, it requires
15
Nothing in Paschall suggests that this court granted a continuance
under the ends of justice exception strictly because the continuance
“concerned only [a] brief and finite delay[] of proceedings,” contrary to
the dissent. Dissent at 41. Additionally, due to the “unprecedented
challenges” brought by COVID-19, Olsen, 21 F.4th at 1040, it was
impossible for the district court to predict when the pandemic would end,
so 30-day continuances were reasonably brief under the circumstances.
UNITED STATES V. OROZCO-BARRON 29
only that the district court make findings that the ends of
justice are served by a period of delay, and the district court
did so here.
C
We conclude that the district court did not err in granting
a continuance based on the ends of justice exception
because, as we have previously determined, a global
pandemic falls within the unique circumstances that permits
a court to temporarily suspend a jury trial in the interest of
public health and safety.16
AFFIRMED.
16
In reaching this conclusion, we do not comment on the extent of a
defendant’s right to a speedy trial under the Sixth Amendment. The only
speedy trial claim presented in this appeal was brought as a statutory
claim under the Speedy Trial Act.
30 UNITED STATES V. OROZCO-BARRON
CHRISTEN, Circuit Judge, concurring in part and dissenting
in part:
I concur in the majority’s conclusion that 8 U.S.C. §
1326 does not violate the Equal Protection Clause, Maj. Op.
at 13 n.4, but the majority errs by affirming the district
court’s denial of Armando Orozco-Barron’s motion to
dismiss for violation of the Speedy Trial Act (STA). The
majority relies on United States v. Olsen, 21 F.4th 1036 (9th
Cir. 2022), a case that arose when a series of orders
suspended all jury trials in the Central District of California
due to the COVID-19 pandemic. By contrast, most of
Orozco-Barron’s pre-trial detention occurred after the
Southern District of California had resumed conducting jury
trials on a limited basis. As such, the STA and Supreme
Court precedent interpreting it required the district court to
make case-specific findings before excluding time on the
STA clock. Because the district court did not do so, I
respectfully dissent.
I
“[T]he right to a speedy and public jury trial provided by
the Sixth Amendment is among the most important
protections guaranteed by our Constitution, and it is not one
that may be cast aside in times of uncertainty.” Olsen, 21
F.4th at 1049 (citing Furlow v. United States, 644 F.2d 764,
769 (9th Cir. 1981) (per curiam)); see also Furlow, 644 F.2d
at 769 (“Except for the right of a fair trial before an impartial
jury no mandate of our jurisprudence is more important.”).
The STA requires that a criminal trial begin within
seventy days from the date on which the indictment was filed
or the date on which the defendant makes an initial
appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1).
UNITED STATES V. OROZCO-BARRON 31
The Act provides flexibility by including a list of reasons
that delays may be excluded from the seventy-day period.
Zedner v. United States, 547 U.S. 489, 497 (2006). In
particular, the ends-of-justice provision “gives the district
court discretion—within limits and subject to specific
procedures—to accommodate limited delays for case-
specific needs.” Id. at 499. Granting an ends-of-justice
continuance requires a finding that “the ends of justice
served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A). District courts have broad discretion to
exclude time under the ends-of-justice provision, and the
severity of the pandemic’s impact on trial court operations
cannot be doubted. But the Supreme Court has emphasized
the importance of the constitutionally guaranteed right to a
speedy trial and has cautioned that the “strategy of [the ends-
of-justice provision] is to counteract substantive
openendedness with procedural strictness.” Zedner, 547
U.S. at 509.
To exclude time under the ends-of-justice exception, the
district court must “set forth, in the record of the case, either
orally or in writing, its reasons” for doing so. 28 U.S.C. §
3161(h)(7)(A). The STA provides four “factors, among
others, which a judge shall consider” when making an ends-
of-justice determination, including “[w]hether the failure to
grant such a continuance in the proceeding would be likely
to make a continuation of such proceeding impossible, or
result in a miscarriage of justice.” Id. § 3161(h)(7)(B). The
court must also consider relevant non-statutory factors, see
United States v. Lloyd, 125 F.3d 1263, 1269–71 (9th Cir.
1997), and the Supreme Court has unambiguously cautioned
that this inquiry entails individualized, case-specific
findings, see Zedner, 547 U.S. at 499; see also United States
32 UNITED STATES V. OROZCO-BARRON
v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000)
(requiring a “particularized inquiry as to the actual need and
reasons for a continuance”); United States v. Jordan, 915
F.2d 563, 565 (9th Cir. 1990) (“We have insisted that any
continuance granted under [the ends-of-justice provision]
must be based on ‘specific factual circumstances.’” (quoting
United States v. Martin, 742 F.2d 512, 514 (9th Cir.
1984))). 1
Orozco-Barron did not receive a trial until eleventh
months after he was charged with a single count of a
nonviolent offense—illegal reentry—and he was jailed the
entire time he awaited trial. In concluding that this delay did
not violate the STA, the district court relied on a series of
Chief Judge Orders (CJOs) that suspended all criminal trials
in the Southern District of California due to the COVID-19
pandemic. For 93 of the 110 days of pre-trial detention at
issue in Orozco-Barron’s case, the Southern District was
conducting jury trials according to its District Trial
Reopening Plan. 2
1
See also United States v. Torres, 995 F.3d 695, 703 (9th Cir. 2021)
(“[T]he plain language of the § 3161(h)(7) ends-of-justice analysis
necessarily includes consideration of a defendant’s detained status.”);
Lloyd, 125 F.3d at 1269 (reversing an exclusion of time when the district
court should have considered whether the parties “actually want[ed] and
need[ed] a continuance, how long a delay [was] actually required, what
adjustments [could have been made] with respect to the trial calendars,”
and other factors).
2
On August 24, 2020, the Southern District adopted a “District Trial
Reopening Plan” providing that jury trials should resume on August 31,
2020. The first criminal jury trial went forward on September 1, 2020.
See United States v. Medina-Suarez, Case No. 19-CR-03192-AJB (S.D.
Cal. Sept. 1, 2020), ECF No. 62.
UNITED STATES V. OROZCO-BARRON 33
The majority affirms the denial of Orozco-Barron’s
motion to dismiss for violation of the STA by overlooking
that trials had resumed in the Southern District during most
of the time he was in jail awaiting trial. The majority also
misreads Olsen and disregards that the district court made no
case-specific findings concerning the circumstances of
Orozco-Barron’s charged offense and detention. Its
reasoning runs contrary to 18 U.S.C. § 3161(h)(7).
My colleagues offer various theories to affirm the district
court’s order denying Orozco-Barron’s motion to dismiss,
but none of them withstand scrutiny. First, the majority
relies on Olsen to conclude that “a district court may
properly rely on a generally applicable circumstance [here,
the pandemic] to grant an ends of justice continuance, and
need not make individualized determinations.” See Maj. Op.
at 27. At this first step, the majority errs in two ways: (1) it
overlooks that the question presented in Olsen was the
district court’s statutory interpretation of the STA, not the
interpretation of the general orders that suspended jury trials
after the pandemic broke out; and (2) it skips over the facts
that Orozco-Barron was detained pre-trial and nearly all of
the excluded time at issue in this case occurred after jury
trials had resumed. Next, the majority asserts that the district
court did “consider[] the relevant statutory and non-statutory
factors when deciding to grant a continuance,” Maj. Op. at
21, but this assertion is contrary to the record. Finally, the
majority suggests that Olsen allows case-specific factors to
be considered in the first instance on appeal. Maj. Op. at 26.
This theory fails because Supreme Court precedent does not
permit harmless-error review of ends-of-justice exclusions.
See Zedner, 547 U.S. at 508–09.
The suspension of criminal trials during the pandemic
was an extraordinary measure and we have scant case law
34 UNITED STATES V. OROZCO-BARRON
addressing the application of the STA to protracted
emergency closures or the reopening of courts after
emergency closures. 3 In my view, the STA and controlling
precedent required case-specific, on-the-record findings in
order to invoke the ends-of-justice exception and stop the
speedy trial clock once trials resumed. Unfortunately, the
district court’s brief discussion did not include such findings
or the balancing the STA requires.
II
Orozco-Barron was arrested for illegal reentry, 8 U.S.C.
§ 1326, on July 17, 2020. He was charged on August 13,
2020 and was ultimately convicted in a one-day trial held
nearly a year later, on July 13, 2021. Orozco-Barron was
detained during the 361 days that passed between his arrest
and trial. At issue on appeal is whether the district court
properly excluded the 110-day period from August 14, 2020
through December 1, 2020.
The Chief Judge of the Southern District of California
issued CJO 18 when the COVID-19 pandemic began in
March 2020. That order temporarily suspended criminal
trials for 30 days and provided that this “period of
suspension” was “excluded under the Speedy Trial Act”
because “[the] continuances serve the ends of justice and
outweigh the interests of the public, of the government, and
3
The majority interprets cases from the Sixth, Eighth, and Tenth Circuits
as allowing district courts to grant ends-of-justice continuances based
solely on general orders suspending all jury trials. See Maj. Op. 12.
None of those cases discuss application of the STA where jury trials have
resumed on a limited basis in the same courthouse. See United States v.
Keith, 61 F.4th 839, 844 (10th Cir. 2023); United States v. Leveke, 38
F.4th 662, 667 (8th Cir. 2022); United States v. Roush, No. 21-3820,
2021 WL 6689969, at *1–2 (6th Cir. Dec. 7, 2021).
UNITED STATES V. OROZCO-BARRON 35
of criminal defendants in a speedier trial.” See 18 U.S.C.
§ 3161(h)(7)(A). Between March and December 2020, CJO
18 was extended on a monthly basis. During the period
relevant to this appeal, August through December 2020,
CJOs 34, 40, 47, and 50 extended CJO 18 for four additional
30-day periods. Each of these CJOs found that extending
CJO 18 “serve[d] the ends of justice under 18 U.S.C.
§ 3161(h)(7)(A).” During most of the pre-trial period in
Orzoco-Barron’s case, a “District Trial Reopening Plan” was
in effect pursuant to CJO 36, allowing a small number of
jury trials to proceed beginning on August 31, 2020. The
Southern District conducted a total of fourteen trials under
this plan before December 2020.
No developments occurred in Orozco-Barron’s case
between his arraignment in August and a hearing held on
October 21, 2020, when the district court postponed setting
a trial date for approximately four weeks because the
government had not yet produced documents pertaining to
Orozco-Barron’s immigration history. On November 13,
2020, the district court entered a minute order providing that
“[d]ue to the Court’s trial schedule, the Status Trial Setting
set for 11/18/2020 is vacated and continued to 12/2/2020.”
The order also noted without explanation that the time
between November 18 and December 2 was excluded under
the STA’s ends-of-justice provision.
The parties agree that the period between December 2,
2020 and May 19, 2021, was validly excluded from the STA
clock due to continuances or pending motions that
automatically excluded time. The government assumes for
purposes of appeal that the STA clock ran in the 33-day
period between May 20 and June 21, 2021. Thus, if the delay
between August 13 and December 2, 2020 is counted, a total
of 143 days had elapsed on the STA clock by June 21, 2021,
36 UNITED STATES V. OROZCO-BARRON
and Orozco-Barron’s right to a speedy trial was violated.
See 18 U.S.C. § 3161(c)(1).
On June 21, 2021, nearly a year after he was first
arrested, Orozco-Barron moved to dismiss his illegal reentry
charge pursuant to the STA. The district court rejected
Orozco-Barron’s argument that 143 non-excludable days
had passed, ruling that “[a]ll of that time was excluded under
the [CJOs].” When the government urged that the court
could “take a belt and suspenders approach” by
“supplement[ing] its findings,” the district court stated that
it was “rel[ying] on the pendency of [the] chief judge orders”
to deny Orozco-Barron’s motion to dismiss. The court
briefly explained that the CJOs were issued because various
public health guidelines requiring social distancing made it
difficult to select a jury or hold trials during the early months
of the COVID-19 pandemic. The court acknowledged that
jury trials were not suspended altogether between August
and late November 2020, but observed that the number of
jury trials was limited to three per week, only one of which
could be for an in-custody case, and judges had to compete
for slots. Based on the CJOs, the district court concluded,
“[T]he bottom line was that it was impossible, a fact the
Ninth Circuit recognized in Olsen, for the Court to convene
Mr. Orozco’s jury trial any time before [July 13, 2021].”
The district court misread Olsen. Our decision there did
not endorse a rule that the existence of a CJO alone could
justify the indefinite delay of an incarcerated defendant’s
right to trial. To the contrary, Olsen explained that the
district court in that case had erred by interpreting the STA
to require denial of the government’s motion to continue
because conducting a trial was not physically impossible
during the pandemic. 21 F.4th at 1045.
UNITED STATES V. OROZCO-BARRON 37
In Olsen, the district court dismissed with prejudice
serious charges against a physician who was indicted after a
six-year investigation on thirty-four counts related to the
unlawful distribution of opioids. Id. at 1040, 1043–44. The
government alleged that Dr. Olsen’s distribution of
dangerous combinations and quantities of opioids resulted in
multiple deaths. Id. at 1042. Dr. Olsen was not detained
pending trial—in fact, despite the gravity of the charges
against him, he had spent no time at all in pre-trial
detention—and he had been granted eight continuances,
postponing trial for over three years, prior to invoking his
speedy trial rights when the COVID-19 pandemic broke out.
Id. at 1040, 1042. The last continuance prior to the onset of
the pandemic was granted despite the fact that the
government was ready for trial, and it was granted over the
government’s objection. Id. at 1042.
Relying on the statutory language in § 3161(h)(7)(B)(i),
the district court in Olsen concluded that an ends-of-justice
exclusion was permissible only if trial was literally
“impossible.” Id. at 1043–44. Because a state court across
the street from the Central District courthouse in Santa Ana
was conducting trials and the federal court had convened a
grand jury, the district court reasoned that “it [was] simply
not a physical or logistical impossibility to conduct a jury
trial” and, without conducting a miscarriage-of-justice
analysis, dismissed with prejudice all the charges against
Olsen pursuant to the STA. Id. at 1043. We reversed and
ordered the district court to reinstate the indictment on
remand. Id. at 1049.
Olsen explained that the district court read
§ 3161(h)(7)(B)(i) incorrectly because that provision directs
district courts to consider “‘[whether] the failure to grant’ a
continuance would make continuing the proceedings
38 UNITED STATES V. OROZCO-BARRON
impossible.” Id. at 1045. The “impossibility” provision in
§ 3161(h)(7)(B)(i) actually undercut the district court’s
decision in Olsen because the denial of a continuance made
a trial on the merits impossible by resulting in the expiration
of the remaining time on the STA clock and dismissal of the
charges. Id. at 1045. Separately, the district court erred by
failing to consider whether denying a continuance would
“result in a miscarriage of justice.” Id. at 1046 (quoting 18
U.S.C. § 3161(h)(7)(B)(i)).
The issue presented in Olsen was a matter of statutory
interpretation, not whether the Central District’s general
orders could indefinitely suspend jury trials. See id. at 1044–
45, 1049 (reversing the district court’s dismissal because its
interpretation of the ends-of-justice provision was
incorrect); id. at 1053 (Murguia, C.J., and Christen, J.,
concurring in the denial of rehearing en banc) (observing
that the question presented was whether the district court
misinterpreted the STA). The district court in Olsen
disregarded the general orders and relied only on its
interpretation of the STA. In stark contrast, the district court
in Orozco-Barron’s case relied entirely on the CJOs, even
though Orozco-Barron was accused of a nonviolent offense,
he was jailed the entire time he awaited trial, and jury trials
had resumed on a limited basis in the Southern District for
most of the pre-trial period at issue. These differences
between Olsen and Orozco-Barron’s case sharply illustrate
why case-specific considerations are necessary for the
balancing required by the STA.
I agree with the majority that the STA does not require a
district court to incant magic words, but our precedent
requires that a reviewing court assess the validity of an STA
exclusion based on the actual reasons offered for a district
court’s ends-of-justice conclusion, not post hoc reasons that
UNITED STATES V. OROZCO-BARRON 39
could have justified the exclusion. See Ramirez-Cortez, 213
F.3d at 1154 (reversing an ends-of-justice exclusion when,
after a magistrate judge granted “blanket continuances” for
cases pending in a “fast track” program, the district court
acknowledged the lack of individualized findings, yet
inferred case-specific reasons supporting the exclusion).
The district court’s order denying Orozco-Barron’s motion
to dismiss solely relied on the CJO orders suspending jury
trials, without considering the specific circumstances of
Orozco-Barron’s case.
Undeterred by the issue actually presented in Olsen and
our result there, the majority shortcuts the analysis required
by the STA and decides that because CJOs limited jury trials
in the Southern District during the pre-trial phase of Orozco-
Barron’s case, the CJOs alone were sufficient to tip the ends-
of-justice balance in favor of continuing the trial. The
majority suggests this is so regardless of Orozco-Barron’s
individual circumstances and regardless of the fact that the
Southern District, unlike the Central District in Olsen, was
conducting a limited number of jury trials during the time
period at issue. 4
The majority’s decision is incorrect. The STA’s ends-
of-justice provision requires “balancing . . . whether the ends
of justice served by granting a continuance outweigh the best
4
The majority relies on Olsen to side-step the Southern District’s limited
reopening of jury trials, reasoning that “Olsen itself recognized that the
mere fact that a district court could physically hold a trial (and that other
courts were doing so) would not prevent a court from granting an ends
of justice continuance.” Maj. Op. at 23 n.13. What the majority ignores
is that, unlike in Olsen, the judges of the Southern District had decided
some jury trials could be safely conducted in their own courthouse during
most of the pre-trial period at issue in Orozco-Barron’s case.
40 UNITED STATES V. OROZCO-BARRON
interest of the public and the defendant in convening a
speedy trial,” which necessitates consideration of case-
specific information. 18 U.S.C. § 3161(h)(7)(A); see
Zedner, 547 U.S. at 499; Ramirez-Cortez, 213 F.3d at 1154.
Olsen did not disturb, and could not have disturbed, this
statutory requirement. See 21 F.4th at 1047. Indeed, Olsen
observed that the district court there also erred by failing to
consider case-specific factors and suggested a non-
exhaustive list of factors for courts to consider when ruling
on similar motions. 5 Id. at 1046–47.
B
The majority fails to explain its departure from our
precedent. It first suggests that the district court could have
permissibly relied solely on the CJOs—interpreting Olsen to
provide that in “unusual cases” like the COVID-19
5
Olsen suggested a list of non-exhaustive factors that, in the context of
the COVID-19 pandemic, “facilitate[] the proper balancing of whether
the ends of justice served by granting a continuance outweigh the best
interest of the public and the defendant in convening a speedy trial”:
(1) whether a defendant is detained pending trial; (2)
how long a defendant has been detained; (3) whether
a defendant has invoked speedy trial rights since the
case’s inception; (4) whether a defendant, if detained,
belongs to a population that is particularly susceptible
to complications if infected with the virus; (5) the
seriousness of the charges a defendant faces, and in
particular whether the defendant is accused of violent
crimes; (6) whether there is a reason to suspect
recidivism if the charges against the defendant are
dismissed; and (7) whether the district court has the
ability to safely conduct a trial.
Id. at 1046–47.
UNITED STATES V. OROZCO-BARRON 41
pandemic, “a district court may properly rely on a generally
applicable circumstance to grant an ends of justice
continuance, and need not make individualized
determinations.” Maj. Op. at 27. In support, the majority
analogizes to United States v. Paschall, 988 F.2d 972 (9th
Cir. 1993), where we upheld an eight-day ends-of-justice
continuance of grand jury proceedings due to a major
snowstorm in Portland. Id. at 27 (citing Paschall, 988 F.3d
at 973–74). We also upheld a two-week continuance in
Furlow, after Mt. St. Helens erupted. 644 F.2d at 767–68.
Paschall and Furlow concerned only brief and finite
delays of proceedings. The outcomes in those cases cannot
be stretched to accommodate across-the-board ends-of-
justice exclusions for all pandemic-related STA
continuances, for months or even years on end, especially
when jury trials had resumed on a limited basis. Because
there was no limit to the number of 30-day suspensions the
pandemic may have required, the majority’s reasoning
would allow indefinite suspensions of criminal jury trials
based solely on blanket general orders. As Olsen
recognized, if the pandemic continued long enough, the need
to honor speedy trial rights could require dismissal of at least
some cases. See Olsen, 21 F.4th at 1052, 1057 (Murguia,
C.J., and Christen, J., concurring in the denial of rehearing
en banc).
The majority’s second theory is that the district court did
in fact “consider[] the relevant statutory and non-statutory
factors when deciding to grant a continuance.” Maj. Op. at
21. The record shows otherwise. The district court relied
solely on the CJOs in place during the disputed time period
and its understanding that Olsen sanctioned reliance on the
CJOs alone. Critically, the district court’s ruling does not
reflect consideration of Orozco-Barron’s detained status
42 UNITED STATES V. OROZCO-BARRON
during the pre-trial period. See Torres, 995 F.3d at 704
(“[W]e can envision no circumstance in which a district
court could properly fail to consider a detained defendant’s
status when addressing a motion to continue the trial.”); see
also Olsen, 21 F.4th at 1063 (Bumatay, J., concurring in the
denial of rehearing en banc) (“[T]his case would be very
different if Olsen had been detained during the COVID-19
pandemic and had suffered the deprivation of his liberty
while the California federal district court shut down
indefinitely.”).
Finally, the majority opinion posits that appellate courts
may consider case-specific “non-statutory factors on appeal
in the first instance.” Maj. Op. at 26. The majority relies on
Olsen for this assertion, but Olsen did not signal that an
otherwise deficient ends-of-justice exclusion could be
affirmed based on post hoc reasoning. Rather, Olsen
discussed case-specific information raised by the
government in its motion for a continuance when explaining
that the district court erred, in part because it failed to
consider that highly relevant information when conducting
ends-of-justice balancing. See 21 F.4th at 1042–44, 1046–
48. The majority’s suggested approach would amount to
harmless-error review, which the Supreme Court has
cautioned does not apply to appellate review of ends-of-
justice exclusions. In Zedner, the Supreme Court held that
an ends-of-justice exclusion cannot be justified by post hoc
reasoning:
Applying the harmless-error rule would . . .
undermine the detailed requirements of the
provisions regulating ends-of-justice
continuances. The exclusion of delay
resulting from an ends-of-justice continuance
UNITED STATES V. OROZCO-BARRON 43
is the most open-ended type of exclusion
recognized under the Act and, in allowing
district courts to grant such continuances,
Congress clearly meant to give district judges
a measure of flexibility in accommodating
unusual, complex, and difficult cases. But it
is equally clear that Congress, knowing that
the many sound grounds for granting ends-
of-justice continuances could not be rigidly
structured, saw a danger that such
continuances could get out of hand and
subvert the Act’s detailed scheme. The
strategy of § 3161(h)([7]), then, is to
counteract substantive openendedness with
procedural strictness. This provision
demands on-the-record findings and specifies
in some detail certain factors that a judge
must consider in making those findings.
Excusing the failure to make these findings
as harmless error would be inconsistent with
the strategy embodied in § 3161(h).
Id. at 508–09. Our circuit precedent also requires that the
district court’s rationale for an ends-of-justice exclusion be
explicitly set forth in the district court record, not supplied
by the reviewing court. See United States v. McCarns, 900
F.3d 1141, 1144 (9th Cir. 2018) (providing that the district
court’s “reasoning [must be] sufficient to justify excluding
the continuance from the Act’s seventy-day limit”);
Ramirez-Cortez, 213 F.3d at 1154–55 (holding that a district
court could not supply findings that might have supported an
ends-of-justice continuance when a magistrate judge granted
the continuance without making the requisite findings in the
first instance).
44 UNITED STATES V. OROZCO-BARRON
* * *
When assessing Orozco-Barron’s STA claim, the district
court did not make case-specific findings and relied solely
on CJOs that applied to every defendant in the Southern
District of California. Yet jury trials had resumed on a
limited basis. Given the importance of the speedy trial right
and the circumstances of this case, I conclude that the STA
required the district court to make case-specific findings.
The district court may have permissibly reached the same
result if it had conducted the required balancing, but we are
not permitted to “speculate as to the ‘findings’ that might
support an ‘ends of justice’ continuance” on appeal.
Ramirez-Cortez, 213 F.3d at 1155. I would therefore reverse
the order denying Orozco-Barron’s motion to dismiss under
the STA, and remand for the district court to determine
whether the dismissal should be with or without prejudice. 6
6
Even if an STA motion is granted and charges are dismissed, whether
charges are dismissed with prejudice is a separate question. At oral
argument in Orozco-Barron’s case, defense counsel conceded that the
government would have had time to re-indict Orozco-Barron if his
charges were dismissed without prejudice. See 18 U.S.C. § 3162(a)(2)
(“In determining whether to dismiss the case with or without prejudice,
the court shall consider, among others, each of the following factors: the
seriousness of the offense; the facts and circumstances of the case which
led to the dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of justice.”);
United States v. Taylor, 487 U.S. 326, 333–34 (1988) (holding that the
court should also consider prejudice to the defendant from the delay).